allege the circumstances under which these threats were made nor how the school caused the paper's editors to reject his advertisement or otherwise "prevented the publication" of the advertisement.
Leeds also alleges that Acting Dean Rossein had failed to conform to the "custom of the CUNY that student newspapers have a faculty adviser." Compl. PP 16, 17. In P20, he alleges that Dean Rossein's failure to appoint a faculty adviser for the paper caused Leeds' constitutional deprivation.
With respect to the other employees of CUNY (none of whom are named defendants in the complaint although some employees are specified by name in the complaint itself), Leeds claims that they acted against the paper in retaliation for its printing his articles. Compl. P23.
Leeds alleges that the student editors, although not employed by the School of Law, were acting under color of state law in their decision not to publish his advertisement, and thus are thereby within the reach of 42 U.S.C. § 1983. At argument Leeds asserted that the editors were state actors or "conspired with state actors." Hearing Tr., p. 3. He also claims that the paper is a "public forum." Compl. P35.
To establish liability for constitutional violations under § 1983 it is essential that the plaintiff show that his rights were violated as a result of state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982), the Court held that there was no state action in a school's retaliatory discharge of teachers following their communication with the board about a dispute with the head of the school even though the state provided virtually all of the school's funding and oversaw its hiring decisions. The absence of any showing that state actors or state policy played a part in the discharges was dispositive. In Sinn v. The Daily Nebraskan, a substantially similar case to that before this court, the Court of Appeals for the Eighth Circuit held that the refusal by a state college newspaper to publish an advertisement did not constitute state action "where there was a complete lack of control over the student newspaper on the part of the University officials," 829 F.2d 662 (8th Cir. 1987).
It is clear that the paper's editors who are law students are not state actors. The Court of Appeals for the Fifth Circuit has held: "The fact that a publication is sponsored by a state agency is not sufficient in itself . . . to establish state action." Estiverne v. Louisiana State Bar Assoc., 863 F.2d 371 (1989). The Estiverne court distinguished the case before it - in which it was undisputed that the state bar journal editors acting pursuant to statute were state actors - from a case, like that before this court, in which the publication is, despite state sponsorship, "sufficiently independent that its editorial decisions may not be characterized as state action." Id. at 376.
Here, any inference of influence by the school administration that might make the student editors state actors is, in fact, undermined by Leeds' own pleading. Leeds alleges that the administration retaliated against the paper by cutting its budget and access to facilities, Compl. P23, and that Dean Rossein had failed to provide a faculty adviser to the paper. Compl. P20. These allegations indicate absence of control over the paper by the law school administration, faculty and staff.
It is the very absence of control of the paper by the law school administration that establishes, based on Leeds' own pleadings, that the decision of the editors was not state action. As the Court of Appeals noted in Sinn v. The Daily Nebraskan: "The Rendell-Baker Court pointed out that regulation and subsidization of an entity, without more, do not create state action, but that the proper test was, rather, whether the challenged action was 'fairly attributable' to the state," 829 F.2d 662, 665 (1987). Plaintiff has alleged no facts from which it may plausibly be inferred that the editor's actions were "fairly attributable" to the law school administration.
Determination that the editors are not state actors is dispositive of the matter here. "If the [publication] is not a state actor, then [plaintiff's] claim would necessarily fail because the first amendment precludes us from recognizing a right of reply against the private press." Estiverne, note 2 at 375.
District courts must be "mindful of the liberality to be accorded pro se pleadings," Pino v. Ryan, 49 F.3d 51, 52 (2d Cir. 1995), and ordinarily hold them to "'less stringent standards than formal pleadings drafted by lawyers,'" Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir. 1993), quoting Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (emphasis added) because, according to the Court of Appeals for the Second Circuit, "some effort [must be made] to protect a party . . appearing [pro se] from waiving a right to be heard because of his or her lack of legal knowledge." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (1993) (emphasis added). Here, however, the complaint was drafted by a lawyer. Plaintiff has been admitted to practice and notes in the complaint that he has prosecuted several actions previously. Compl. P 14. Thus, relaxation of already liberal pleading standards is not appropriate despite the plaintiff's pro se status.
More importantly, even under modern-day liberal pleading standards, a plaintiff's "bald assertions, unsupportable conclusions, and 'opprobrious epithets,'" are not sufficient to state a claim, The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) quoting Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987) quoting Snowden v. Hughes, 321 U.S. 1, 10, 88 L. Ed. 497, 64 S. Ct. 397 (1944). Citing Dartmouth Review, the Second Circuit has recently enunciated the standard for dismissal under Rule 12(b)(6) in a civil rights case alleging racial discrimination: "In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent," Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994). See also, Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371 (2d Cir. 1978) ("It is well settled in this Circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6).) Accord, Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990) (In a RICO action, "It is incumbent on a plaintiff to state more than conclusory allegations to avoid dismissal of a claim predicated on a conspiracy to deprive him of his constitutional rights.")
Furthermore, the nature of this case-involving, as it does, the First Amendment rights of a student newspaper to exercise its discretion in accepting advertisements-requires a more substantial showing than Leed's factually unsupported allegation of influence upon the newspaper editors by state actors at the law school. As most student publications generally are without substantial resources, baseless actions can impair the First Amendment rights of the publications and their student participants. Almost certainly and quite reasonably, most students -- if they become aware that complaints can be sustained on the flimsy basis present here -- would be unwilling to run the risk of having to pay substantial legal fees to defend themselves from unjustified legal actions and would forego the opportunity to participate in this activity.
Thus, permitting this action to proceed based on a conclusory complaint would be especially inappropriate where three of the defendants are students -- albeit law students -- who are without funds of their own to retain counsel.
In addition to these concerns about the First Amendment rights of the students, this is not an instance where a bona fide prefiling investigation would be expected to be unavailing. It is true that, at times, only court-ordered discovery may enable a plaintiff to learn the underlying facts in, for example, a civil RICO conspiracy case where even energetic prefiling investigation may prove fruitless because the financial and other concerns of potential defendants make them less than forthcoming with information.
Here, however, we are dealing with a situation where, if there is any substance to the claim, an effective prefiling investigation would have been expected to produce facts or circumstances to substantiate a good faith filing. It is difficult to believe that all three student editors would have supinely accepted the alleged intimidation of the school administration. Even if they had felt intimidated, students being students, more than likely they would have at least complained to some of their student colleagues about the administration or faculty pressure and the issue, in the natural course of events, would inevitably have become a subject of student discussion at the law school. Thus, had plaintiff undertaken even a minimal investigation instead of filing at the earliest possible opportunity, he would, if there were any merit to his claim, in short order have learned enough to provide more than his present conclusory pleading.
Under Rule 12(b)(6), "a complaint must not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994), but as the Court of Appeals for the First Circuit observed in Dartmouth Review:
Gauzy generalities, unsupported conclusions, subjective characterizations, and problematic suppositions can sprout as easily as crabgrass in an imaginative litigant's (or lawyer's) word processor. Therefore, to avoid tarring defendants' reputations unfairly and to prevent potential abuses, we have consistently required plaintiffs to outline facts sufficient to convey specific instances of unlawful discrimination. 889 F.2d 13, 16 (1989).